Review of the merits of the re‑listings
2.1
In reviewing the merits of each re-listing, the Committee has taken into account the Minister for Home Affairs’ explanatory statement, ASIO’s Statements of Reasons, and other publicly available information. As these are re-listings, the Committee’s review has focussed on each organisation’s activities since the last re-listings in 2015.
The criteria for listing an organisation
2.2
For an organisation to be listed as a terrorist organisation under section 102.1(2) of the Criminal Code, the Minister must be satisfied on reasonable grounds that the organisation:
is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or
advocates the doing of a terrorist act.
2.3
In addition to these legislative criteria, when preparing the Statement of Reasons, ASIO may have regard to non-legislative factors, including:
ideology and links to other terrorist groups or networks,
threats to Australian interests,
proscription by the United Nations Security Council or like-minded countries, and
engagement in peace/mediation processes.
2.4
For each listing, both the legislative and non-legislative factors are addressed in the Statement of Reasons provided to the Minister of Home Affairs by ASIO. The Statement of Reasons is based on publicly available information and is, ‘to the Australian Government’s knowledge, … accurate, reliable and has been corroborated by classified information’.
2.5
The Committee was first advised of ASIO’s evaluation process, including its use of non-legislative factors, in 2005. As has been the approach in past reviews, the Committee has used these criteria to assess the appropriateness and adequacy of the evidence provided.
Al-Shabaab
2.6
Al-Shabaab is the name generally applied to the Somali militant group that was formerly the most prominent of the militia groups within the militant wing of the Council of Islamic Courts. The Somali Transitional Federal Government and Ethiopian forces ousted the Council in December 2006.
2.7
Al‑Shabaab established itself as the leading insurgent group operating in Somalia and, following the withdrawal of Ethiopian forces in January 2009, Al-Shabaab controlled much of the country. Currently, the organisation controls some territory in southern Somalia, although ‘this is fluid and frequently changes, depending on regional counter‑terrorism activity and troop movements’.
2.8
Al-Shabaab’s objective is the establishment of an Islamic state in the Horn of Africa based on Sharia law, and the elimination of secular and foreign influence. In 2012, Al‑Shabaab pledge its allegiance to proscribed terrorist organisation al‑Qa’ida.
2.9
In pursuit of its objective, Al-Shabaab has engaged in a violent insurgency and committed numerous terrorist attacks against the Somali Government and African Union Mission in Somalia (AMISOM) forces supporting that government. The organisation has used mortars, rocket‑propelled grenades, improvised explosive devices and firearms in those attacks.
Legislative criteria
2.10
The Statement of Reasons provides a list of twelve terror attacks and actions for which Al-Shabaab is responsible, or can be reliably held responsible since it was last proscribed under the Criminal Code in 2015. Since that date, the most deadly attack occurred on 14 October 2017 when a vehicle‑borne improvised explosive device killed at least 500 people at an intersection in Mogadishu.
2.11
The most recent attack occurred on 11 January 2018, where the organisation conducted a mortar attack against the Presidential Palace in Mogadishu, killing one security guard.
2.12
It is estimated that Al-Shabaab has between 3000 and 9000 fighters most of whom are ethnic Somalis. These numbers have not increased or decreased since the Committee last reviewed the re‑listing of Al-Shabaab. In addition to recruiting members from neighbouring Kenya, a small number of Al‑Shabaab fighters are recruited from other countries including Western nations.
Non-legislative factors
2.13
Al-Shabaab has not made statements specifically threatening Australians or Australian interests. However, al-Shabaab has issued statements threatening Westerners and Western interests and has attacked locations known to be popular with Westerners, including shopping malls and cafes. Australians are a visible Western presence who reside, work and/or travel in regions where al-Shabaab may operate, particularly in Kenya. There are also a number of publicly-listed Australian mining companies and other business interests in these regions.
2.14
The Statement of Reasons notes that Al-Shabaab is not known to participate in peace or mediation processes despite invitations from the Somali Government and AMISOM to disarm and participate in the Somali peace process.
2.15
Al-Shabaab was listed as a proscribed terrorist organisation by the governments of the United States in March 2008, New Zealand in February 2010, Canada in March 2010, the United Kingdom in May 2010, and by the European Union in April 2010.
2.16
In Australia, Al-Shabaab was originally listed as a terrorist organisation under the Criminal Code on 22 August 2009, and relisted on 18 August 2012 and 11 August 2015. Australia also lists Al-Shabaab for counter-terrorism financial sanctions under numerous United Nations Security Council resolutions.
Committee comment
2.17
As with its previous reviews of the re‑listing of Al-Shabaab as terrorist organisation, the Committee again used ASIO’s criteria (as outlined in paragraph 1.20) to assess the information provided to support the re‑listing.
2.18
On the basis of evidence provided, the Committee is satisfied that Al‑Shabaab continue to engage in, and advocate, terrorist acts, thereby satisfying the definition of terrorist organisations set out in section 102.1 of the Criminal Code.
2.19
Consequently, the Committee supports the re‑listing of the organisation under section 102.1 of the Criminal Code.
Hamas’ Izz al-Din al Qassam Brigades
2.20
Hamas is a Palestinian Sunni Islamist organisation and political party founded in 1987. Hamas is a multifaceted organisation that maintains extensive social service networks and is largely responsible for the administration and provision of government services, including health, education and security, to Gaza’s inhabitants.
2.21
Hamas’ Izz al-Din al-Qassam Brigades (the Brigades) were officially established in 1991 to provide Hamas with a paramilitary capability. The Brigades are structured as a distinct military wing separate from Hamas’s others structures, which include its Political Bureau and security agencies. Accordingly, the Brigades operate with a significant degree of independence in their decision making.
2.22
Despite this, the Statement of Reasons explains that due to the relationship with Hamas, organised terrorist activities associated with that organisation can be reliably attributed to the Brigades.
2.23
The Brigades seek to establish a Palestinian Islamist state comprising Gaza, the West Bank and Israel, destroying Israel as a political entity in the process. Due to the disparity in the military capabilities of the Brigades and Israel, the Brigades have adopted terrorist tactics in their efforts to defeat Israel, including indiscriminate rocket attacks, suicide bombings and kidnappings. The Brigades have never demonstrated intent to conduct attacks outside of Israel and the Palestinian Territories or to target interests of countries other than Israel.
Legislative criteria
2.24
In pursuit of its objective, the Brigades have engaged in small‑arms, rocket and mortar fire at Israel and communities in the vicinity of Gaza. These attacks have caused the death or injury of civilians and military personnel as well as property damage.
2.25
The Brigades engage and operate with other terrorist organisations including Hizballah’s External Security Organisation and Palestinian Islamic Jihad’s Al‑Quds Force.
2.26
The Statement of Reasons provides two specific terror attacks and actions for which the Brigades are responsible, or can be reliably held responsible since it was last proscribed under the Criminal Code in 2015.
2.27
On 18 April 2016, an individual detonated an improvised explosive device on a bus in Jerusalem injuring 20 people. The attacker was the only fatality. The Brigades claimed the attacker as a member, and praised the attack. More recently in February 2018, the Brigades conducted almost daily missile tests. Israel reportedly believed these missile drills were conducted in an effort to increase the efficiency, and improve the range of Brigades’ missile capability.
Non-legislative factors
2.28
The Statement of Reasons provides that there are no known links between the Brigades and Australia, nor has the organisation specifically mentioned Australians or Australian interests as targets.
2.29
The Statement of Reasons advises that governments in the United Kingdom and New Zealand have proscribed the Brigades as a terrorist organisation. Canada and the United States have proscribed Hamas (including the Brigades) as a terrorist organisation. Hamas is listed by the European Union and the Department of Foreign Affairs and Trade for the purposes of the financing of terrorism.
2.30
In Australia, the Brigades were originally listed as a terrorist organisation under the Criminal Code on 9 November 2003, and re-listed on 5 June 2005, 7 October 2005, 8 September 2007, 8 September 2009, 18 August 2012 and 11 August 2015.
Stakeholder support and calls for extension
2.31
While the Committee did not receive extensive evidence from non‑government stakeholders on this re listing, the Australia/Israel & Jewish Affairs Council (AIJAC) strongly supported the listing of the Brigades in its submission.
2.32
The AIJAC further recommended that the re‑listing be expanded to extend to Hamas in its entirety, referring to evidence which, in its view, would support the extension. The Council’s submission provides specific and recent examples of where Hamas is reported to have engaged directly or indirectly in terrorist acts, or, advocated the doing of terrorist acts. Among those examples, the submission alleges:
Hamas (not the Brigades) claimed responsibility for violence along the border between Gaza and Israel which allegedly involved the use of light weapons, explosives, Molotov cocktails and other weapons, and
senior figures in Hamas (who are not necessarily affiliated with the Brigades) have ‘encouraged or supported’ ongoing violence at the border between Gaza and Israel.
2.33
The AIJAC also argued for the expansion on the basis that the Brigades are funded by the broader Hamas organisation, and the organisation’s ideology supports the destruction of Israel and the replacement of Israel with an Islamic Palestinian state. Further, the Council noted that Yahya Sinwar, the founder and long‑time leader of the Brigades, was nominated as leader of Hamas in 2017. The submission commented: ‘it seems incongruous that an organisation with Hamas’ history of activity and a key leader like Sinwar, whose background is completely in the banned military wing, is not listed’.
2.34
The AIJAC noted that the broader organisation is listed by Canada and the United States.
2.35
The Council noted a precedent for this Committee to recommend broadening the listing of organisations to their affiliated partners or parent organisations. Specifically, the Council noted the Committee’s recent recommendation to the Minister for Home Affairs to give further consideration to extending the listing of Hizballah’s External Security Organisation to include the military wing of Hizballah.
Committee comment
2.36
As with its previous reviews of the re‑listing of Hamas’ Izz al-Din al Qassam Brigades as terrorist organisation, the Committee again used ASIO’s criteria (as outlined in paragraph 1.20) to assess the information provided to support the re‑listing.
2.37
On the basis of evidence provided, the Committee is satisfied that Hamas’ Izz al-Din al Qassam Brigades continue to engage in, and advocate, terrorist acts, thereby satisfying the definition of terrorist organisations set out in section 102.1 of the Criminal Code.
2.38
The Committee notes the representations from the AIJAC regarding the extension of the listing to the entirety of Hizballah. Noting that the Committee’s previous recommendation for the extension of the listing of Hizballah’s External Security Organisation to the military wing remains under active consideration by the Government, the Committee will remain in dialogue with agencies regarding the breadth of this listing.
2.39
The Committee supports the re‑listing of the organisation under section 102.1 of the Criminal Code.
Lashkar-e-Tayyiba
2.40
Lashkar-e-Tayyiba (LeT) is a Pakistan-based Sunni Islamic extremist organisation that uses violence in pursuit of its stated objective of uniting Indian-administered Kashmir with Pakistan.
2.41
LeT’s broader objectives include establishing an Islamic Caliphate across the subcontinent to encompass all of India’s Muslim populations even in areas where they do not form a majority.
2.42
LeT was formed in the late 1980s as the military wing of the Pakistan-based Islamist fundamentalist movement Markaz al-Dawa wal Irshad (also known as Jamaat al-Dawa). The organisation was originally formed to wage militant jihad against the occupation of Afghanistan by the former Soviet Union, though shifted its focus to the insurgency in Indian-administered Kashmir in the 1990s following the Soviet withdrawal from Afghanistan.
2.43
LeT was banned by the Pakistani government in 2002, but the Statement of Reasons provides that it continues to operate in Pakistan under the alias Jamaat ud-Dawa (JuD). JuD functions as ‘a front organisation’ for LeT to ‘mask its activities’ and to continue to solicit funds. In December 2017, JuD confirmed that it would contest the 2018 general elections in Pakistan.
2.44
Pakistani authorities placed the leader of JuD, Hafiz Saeed under house arrest in January 2017, but he was released in November 2017.
2.45
Indian authorities arrested seven individuals suspected of channelling LeT funds through Hawala dealerships in January 2018, and amended legislation allowing Indian authorities to seal JuD offices and freeze JuD bank accounts. In March 2018 Khyber Pakhtunkhwa police and local officials sealed at least ten JuD offices across Peshawar at the behest of the federal government, which instructed the K-P to ‘seal all the offices, seminaries as well as charities and dispensaries of … JuD’.
2.46
LeT is likely to have several thousand active members, the majority of whom are fighters from Pakistan and Afghanistan. The organisation maintains and fosters links with a variety of Islamist extremist groups including the Taliban and al‑Qa’ida.
Legislative criteria
2.47
LeT has engaged in, prepared and planned numerous terrorist attacks against Indian security force personnel, government and transport infrastructure and civilians in Indian-administered Kashmir.
2.48
The Statement of Reasons provides a list of seven terror attacks and actions for which the organisation is responsible, or can be reliably held responsible since it was last proscribed under the Criminal Code in 2015. The seven separate incidents resulted in 29 total deaths of security personnel (including Indian soldiers), militants and civilians.
Non-legislative factors
2.49
Although LeT’s links with Australia were more direct in previous years —a French court and the New South Wales Supreme Court convicted two individuals in 2003 and 2006 respectively for planning terrorist attacks in Australia in conjunction with LeT—the Statement of Reasons states that the organisation still poses a threat to Australian interests.
2.50
LeT has been listed as a terrorist organisation in the United States, Canada, the United Kingdom, New Zealand, Pakistan and India. LeT is also listed in the United Nations Security Council 1267 Committee’s consolidated list, and this listing has been adopted on the Consolidated List maintained in Australia by the Department of Foreign Affairs and Trade.
2.51
In Australia, LeT was originally listed as a terrorist organisation under the Criminal Code on 9 November 2003, and re-listed on 5 June 2005, 7 October 2005, 8 September 2009, 18 August 2012, and 11 August 2015.
Committee comment
2.52
As with its previous reviews of the re listing of Lashkar‑e‑Tayyiba as terrorist organisation, the Committee again used ASIO’s criteria (as outlined in paragraph 1.20) to assess the information provided to support the re listing.
2.53
On the basis of evidence provided, the Committee is satisfied that Lashkar‑e‑Tayyiba continues to engage in, and advocate, terrorist acts, thereby satisfying the definition of terrorist organisations set out in section 102.1 of the Criminal Code.
2.54
Consequently, the Committee supports the re‑listing of the organisation under section 102.1 of the Criminal Code.
Palestinian Islamic Jihad
2.55
Palestinian Islamic Jihad (PIJ) is a Sunni Islamist organisation committed to the destruction of Israel. PIJ seeks to establish a sovereign Islamic state within the geographic borders of the pre-1948 British-mandated Palestine.
2.56
Formed in 1981 in Gaza, PIJ comprises a leadership council and a military wing called the al-Quds Brigades, which claims responsibility for PIJ attacks. The Statement of Reasons notes that as PIJ focuses ‘almost exclusively on militant activities that further its objectives, the organisation as a whole and the al-Quds Brigades are essentially indistinguishable’.
2.57
Although PIJ is a Sunni group, the organisation remains ideologically supportive of and maintains close ties with Iran’s Islamic Revolutionary Guards Corp and Lebanese Hizballah. PIJ is principally funded by Iran. The organisation maintains links with Hamas’ Izz al‑Din Al‑Qassam Brigades.
2.58
PIJ recruits its members principally from Palestinian communities in Gaza and the West Bank. The exact size of PIJ membership is unknown, though it is likely to consist of less than 1000 members.
2.59
While the organisation’s leadership has publicly committed to maintaining a ceasefire brokered with Hamas and Israel in 2014, it is understood that all parties have breached the 2014 agreement. The PIJ is not known to have reengaged in peace or mediation processes.
2.60
Since the Committee last reviewed the relisting of PIJ in 2015, the organisation has continued to engage in terrorist activity. The Statement of Reasons provides that in March 2018, Israeli security forces arrested ten members of PIJ for their involvement in a plot to fire a missile at an Israeli naval ship and abduct a number of Israeli soldiers. In addition to this, the Statement of Reasons comments that the organisation maintains a tunnel network to launch and facilitate attacks; smuggle goods and ammunition across borders; and enable training.
2.61
The Statement of Reasons also provides examples of the organisation’s advocacy of doing terrorist acts.
2.62
The PIJ has no known direct links to Australia, nor has it made statements specifically targeting Australians or Australian interests.
2.63
PIJ has been listed as a terrorist organisation in Canada, New Zealand, the United Kingdom and the United States. The European Union has also listed the organisation for the purposes of anti-terrorism financing measures. Similarly, PIJ is included in the Department of Foreign Affairs and Trade’s Consolidated List which implements Australia’s obligations under the United Nations Security Council Resolution 1373 in relation to countering the financing of terrorism.
2.64
In Australia, PIJ was originally listed as a terrorist organisation under the Criminal Code on 3 May 2004, and re-listed on 5 June 2005, 7 October 2005, 8 September 2007, 8 September 2009, 18 August 2012 and 11 August 2015.
2.65
While the Committee did not receive extensive evidence from non‑government stakeholders on this re‑listing, the Australia/Israel & Jewish Affairs Council strongly supported the listing of PIJ in its submission.
Committee comment
2.66
As with its previous reviews of the re listing of the Palestinian Islamic Jihad as terrorist organisation, the Committee again used ASIO’s criteria (as outlined in paragraph 1.20) to assess the information provided to support the re listing.
2.67
On the basis of evidence provided, the Committee is satisfied that the Palestinian Islamic Jihad continues to engage in, and advocate, terrorist acts, thereby satisfying the definition of terrorist organisations set out in section 102.1 of the Criminal Code.
2.68
Consequently, the Committee supports the re listing of the organisation under section 102.1 of the Criminal Code.